No Client, No Jurisdiction: The Docket Of The Bay

A lawyer for the Department of Defense had no private right to compel public hearings in the proceedings involving Ibrahim al Qosi 

In this case, a defense attorney named Philip Sundel (with no client) petitioned a court (with no jurisdiction) to reverse a procedural ruling (excluding the public from a classified hearing) in an appeal filed by other attorneys who (like Sundel) have no client. Welcome to Guantanamo Bay.

Circuit Judge Walker authored the opinion  of the United States Court of Appeals for the District of Columbia Circuit

To be clear, government lawyers often have a right and a duty to argue against proposed policies within the agency’s walls. And when they think a policy is illegal, it is their job to say so. See, e.g., Steven A. Steinbach, The Two Lives of Laurence Silberman: Political Service and Judging, available at https://dcchs.org/wp content/uploads/2019/06/Silbermanoral-history-summary-revised.pdf (Undersecretary of Labor Laurence Silberman submitted a resignation letter “after a runin with Chuck Colson, who was improperly ‘trying to fix’ DOL enforcement actions”). But we are not saying that, having lost the internal debate, a government lawyer can, as a member of the public, litigate the debate’s outcome in federal court.

Nor are we opining on the constitutionality of that debate’s outcome. It is an open question whether the public has a First Amendment right to attend hearings related to detainees at Guantanamo Bay. For now, we simply note that allowing a government lawyer to litigate that question as a member of the public would invite ill-advised litigation in other contexts.

In short, Sundel may or may not have prudential standing. But we need not address that precise issue today because there is a clearer reason we must dismiss Sundel’s case: We lack subject matter jurisdiction.

The above-cited Senior Judge Silberman was on the panel. (Mike Frisch)